Important Point – Inherent powers cannot be exercised by any criminal Court if there is an express or implied bar in Code of Criminal Procedure itself or in any other Statute.

J.B. Pardiwala, J. (CAV) - By this application under Article 227 of the Constitution of India, the applicants-original accused persons call in question the legality and validity of the order dated 25th November, 2014 passed by the Additional Sessions Judge, Court No.3, Ahmedabad in the Criminal Revision Application No.298 of 2014 by which the learned Judge partly allowed the application setting aside the order passed by the learned Additional Chief Metropolitan Magistrate, Court No.15, Ahmedabad in the Criminal Case No.304 of 2014 dated 5.7.2014 and at the same time directing the Maninagar Police Station to undertake investigation of the complaint filed by the respondent No.2 herein (original complainant) under section 156(3) of the Code of Criminal Procedure and file an appropriate report before the trial court within a period of 90 days.

2. The facts of the case may be summarised as under:

2.1 The respondent No.2 herein lodged a private complaint in the court of the learned Additional Chief Metropolitan Magistrate, Court No.15, Ahmedabad against the applicants herein for the offence punishable under sections 406, 420, 409, 465, 468, 469, 471, 365, 307, 342, 120(B) and 294(b) of the Indian Penal Code. The complainant prayed that the complaint be sent for police investigation through the P.I. of the Maninagar Police Station under section 156(3) of the Code of Criminal Procedure, 1973. However, it appears that the learned Metropolitan Magistrate thought fit to take cognisance upon the complaint after recording verification of the complainant on oath. It appears that the learned Magistrate, thereafter, ordered police inquiry under section 202 of the Code. On receipt of the report of the police as regards the inquiry, the learned Magistrate thought fit to issue process under section 204 of the Code for the offence enumerated above.

2.2 The applicants herein, being dissatisfied with the order passed by the learned Metropolitan Magistrate dated 5.7.2014, preferred the Criminal Revision Application No.298 of 2014 challenging the legality and validity of the order passed by the learned Magistrate.

2.3 It was argued before the Revisional Court that the entire procedure which was adopted by the learned Magistrate was contrary to the provisions of the Code of Criminal Procedure inasmuch as the learned Metropolitan Magistrate could not have issued process for the offence under section 307 of the Indian Penal Code which is a sessions triable offence in the absence of proper inquiry under section 202 of the Code. The principal argument of the applicants before the Revisional Court was that the learned Magistrate could not have ordered investigation under section 202 of the Code through police since the offence complained of is triable exclusively by the court of sessions. It was also argued that the proviso to subsection (2) to section 202 of the Code provides that if it appears to the Magistrate that the offence complained of is triable exclusively by the court of sessions, then he shall call upon the complainant to produce all his witnesses and examine them on oath.

2.4 The Revisional Court accepted both the contentions and in my view very rightly as the position of law is very well settled. However, while quashing the order passed by the learned Metropolitan Magistrate, the learned Sessions Judge exceeded its jurisdiction by ordering police investigation under section 156(3) of the Code read with section 397 of the Code.

2.5 The operative part of the impugned order reads thus;

“23. Consequence upon the above discussion, the following order is passed in the interest of justice.

ORDER

1. Criminal Revision Application filed by the applicants Mr. Umashankar R. Sharma, Mr. Nareshkumar R. Sharma and Mr. Devendrakumar R. Sharma, is hereby partly allowed.

2. Under Section 397 of the Criminal Procedure Code, the order passed by the Learned Additional Chief Metropolitan Magistrate, Court No.15, Ahmedabad, in Criminal Case No.304/2014 dated 05.07.